One step closer to the abolition of s377A in Singapore?

The nation's gay sex law was today challenged by human rights lawyer M. Ravi – and by the presiding judges. Ng Yi-Sheng reports.

For the last twelve months, prominent human rights lawyer M. Ravi has been fighting to overturn Singapore’s anti-gay sex laws, enshrined in section 377A of our Penal Code. Now, after this morning’s hearing, it looks like he might be one step closer to success.

Lawyer M. Ravi

At 10 am today, he faced down the Attorney-General’s Chambers (AGC) in the Court of Appeal before Justices VK Rajah, Andrew Phang and Judith Prakash. Before a packed gallery of his supporters, he made a compelling, substantiated argument against the constitutionality of s377A, assisted by his researcher Indulekshmi Rajeswari.

Ravi’s eloquence was entirely expected, but what happened next was astonishing. Aedit bin Abdullah took the floor. As a crack lawyer from the AGC and former district judge, he should have been formidable. Yet his counter-arguments were weak, plagued by fallacies and circular logic.

The judges didn’t let this slide, either. We in the gallery were transfixed as each we watched the proceedings, each of the three judges taking turns to interrupt the counter-argument to point out the flaws and lapses in reasoning. At several points, the entire room began laughing at the absurdity of the replies, as when Abdullah resorted to mixed metaphors, protesting that the abuse of s377A was “just a spectre that is not real.”

At noon, the judges adjourned the court, declaring that they would reserve judgment. Their verdict should be released three to four weeks from now. This means it’s far too early to celebrate.

Still, this reporter is optimistic. Everything I’ve observed points towards a ruling in our favour – one of several victories we’ll need in the long journey towards gay equality in the eyes of the law.

Background

Fridae has already covered the background of this case in an earlier article. But, for the sake of clarity, we’ll do a recap.

It all began on 9 March 2010, when police received a phone call complaining that two middle-aged men were having oral sex in a shopping centre toilet. Both men, a Mr Chin and Mr Tan Eng Hong, were arrested by the police and charged under s377A, guaranteeing them jail time.

On 24 September, Ravi filed an Originating Summons on behalf of Mr Tan. This summons challenged the legality of s377A, saying that it contravened Singapore’s Constitution: specifically, Article 12, which guarantees everyone equality before the law.

The AGC then withdrew their original s377A charges and substituted charges under Section 294, which forbids obscene acts in public. Both Mr Tan and Mr Chin pleaded guilty, and were fined S$3,000 each – a far lighter sentence than they would have otherwise received.

But Ravi and Tan weren’t satisfied with this partial victory. They insisted that the constitutional challenge be continued. On 15 March 2011, Justice Lai Siu Chiu of the High Court ruled that the constitutional challenge was not permissible, given that it wasn’t a matter of importance to be decided in court. Ravi then took the case to the Court of Appeal, where he reiterated his belief that a constitutional challenge was valid.

Arguments

Ravi made three basic arguments on behalf of Tan:

1. Tan Eng Hong had the right and interest to pursue this issue even though his s377A charges had been withdrawn.

2. S377A contravenes the Constitution’s guarantee of equality of all before the law.

3. S377A also presents an exceptional case where the rights of a significant number of persons are marginalised.

Abdullah from AGC made three main counter-arguments:

1. As Tan was not, ultimately, prosecuted under s377A, he has no right nor interest in pursuing the issue.

2. Parliament has stated that s377A will not be proactively enforced; therefore gay men in Singapore are not marginalised by the law. In fact, the law is only exercised now when men are being investigated or prosecuted for other crimes, such as public sex, sexual assault or drug use.

3. If the court rules that s377A may be challenged constitutionally, then this creates a “slippery slope” situation where numerous frivolous claims can be made to challenge other laws on constitutional grounds.

Ravi had plenty of supportive data on his side. For instance, Justice Lai had previously conceded Tan’s right to pursue the issue, and had also acknowledged the illogicality of outlawing gay male sex and not gay female sex. He was able to point to how Singapore celebrated its non-discrimination even against lesbians at the UN’s Committee on the Elimination of Discrimination Against Women (CEDAW), and point to landmark cases where gay sex laws were overturned in Commonwealth territories such as India, Hong Kong and Australia.

However, there were two pieces of evidence that stood out. First, there was a news report of two men who were recently jailed under s377A, gleaned from Channel News Asia. On 14 December 2009, Muhammad Noor Izuan Sa’ad and Timothy Ang Ah Sa were arrested for having sex in a coffeeshop toilet. They were prosecuted by AGC and sentenced in September 2010, without any recourse to legal aid. Second, Ravi had confidential reports of men who had been investigated and given warnings by the police for having gay sex in private settings. Given these smoking guns, it sounded ludicrous when the AGC argued that the danger of prosecution under s377A was merely “theoretical”.

Faced with such facts, Abdullah’s arguments often sounded like so much bluster. At one point, he tried to defend AGC’s strategy of substituting charges: while the police might arrest people under s377A, but the AGC would prosecute them under other charges. In reply, Justice Prakash blithely suggested, “If it wasn’t on the statute books, it’d make your lives a bit easier, isn’t it?”

At another point, he argued that the challenge to s377A by no means counted as an “exceptional case” that required intervention of the courts. Justice Rajah then noted the irony of arguing for a law to be retained but not proactively enforced. “Doesn’t this make this an unusual case?” he concluded.

What struck me, however, was the fact that these judges appeared to be genuinely lacking in homophobia. There was of course the standard discomfort in all parties whenever the issue of sex in public toilets was brought up. However Justice Phang seemed to actually empathise with Singaporeans gay men, remarking, “We don’t want to be looking over our shoulders at all moments, as citizens. Unless a binding assurance [not to prosecute] can be given… but that can’t be done.”

He challenged the AGC to guarantee that s377A wouldn’t be used in the future – a challenge that the hapless Abdullah was unable to answer. He even pointed out that Parliament might change in composition and renege on their promises.

I’ve cited these specific retorts from the judges so that readers may understand why I’m filled with a sense of premature triumph – as are Ravi, Tan, Indulekshmi and practically everyone who was sitting in the gallery this morning. There may yet be a surprise upset in the verdict, but I’m comforted that Justices Rajah, Phang and Prakash have demonstrated a certain level of mature open-mindedness towards gay Singaporeans.

There are, of course, are many hurdles still to cross. If Ravi wins this case, he’ll have to bring up the issue of constitutionality in the High Court. There, it’ll face mighty odds, for in the history of Singapore there has never been a law struck down as unconstitutional.

But for now, we’ll have to count the weeks till the judges make their decision. Dare we hope for the best? Yes, we do. It’s the only way progress happens.

You can read the arguments M. Ravi used in his case today here:
http://sgwiki.com/wiki/M._Ravi%27s_reply_to_the_Attorney-General%27s_submissions_in_the_Section_377A_constitutional_challenge
...or download his original PDF here:
http://groyn88.pbworks.com/w/file/46114813/MRaviReplyToAGsSubmissions.pdf
Cheers,
Roy.

Whether the justices are lacking in homophobia or not is anyone's guess. I would like to think that they are neutral and unbiased professionals with extensive experience in their current appointments and so would be able to decide fairly regardless of their personal beliefs. It is only with unbiased logic and reason that their decision (crossing my fingers that it would be in our favour) would stand on its own and withstand any scrutiny.

There is no credible argument that the courts can use to show that 377A does not discriminate against MSMs.
Anal and oral sex between heterosexuals and lesbians is legal while the exact same acts between men are not. This is discrimination pure and simple and there is no denying it.
377A therefore violates Article 12 of the Constitution which guarantees every Singaporean's equality in the eyes of the law and is thereby rendered unconstitutional.
The courts cannot use reasons like "Society is still conservative", the way they did in Parliament because constitutional challenges have to follow the requisite legal format which includes drawing upon local and international legal precedent.
The chances of M. Ravi's challenge eventually succeeding are very good indeed.

I'd suggest that this is a bigger issue than just gays vs mainstream.
Having Article 12 of the constitution, AND S377A while removing S377 as regards lesbian sex PLUS a government promise not to use it, YET having enforcement officers use it in veiled threats and actually prosecuting people under it simply makes a mockery of LAW in Singapore. It also means that what the government says can't be completely trusted since the minions will still use it veiled or actual, when it is expedient. At this stage, it might be best to just quietly let the Appeal Court decide, and see the outcome. Remember: We still have one party with over 90% of the vote. They can change the constitution! We, the citizens of Singapore, have given them absolute power over us :-(

Even if the Court of Appeal determines that s377A is unconstitutional, it does not mean that Parliament will repeal it. Don't forget, we have a Parliament dominated by homophobia and lots of yes-man lawyers ready and willing to lick their political master's behind.

The ruling party is not going to let it go, believe me. They will simply rephrase s377A so that the meaning will end up more or less the same as the original.

In the end, it's the guy who calls the shots in Parliament who'll have the last say. That's just the political reality.

heemale, what you describe is probably true but that's not a reason to give up. Each win can increase people's confidence to continue fighting. How did gays in other countries obtain their rights? Ultimately to change the "political reality" of Singapore requires ordinary Singaporeans to mobilise and challenge the authority through campaigning for a range of political, economic and social demands. Indians won the victory of abolishing Section 377 last year. How do you know this will never happen in Singapore?

#1: the judge had ruled previously that even though Tan's s377A charge had been withdrawn, he still HAD ground for challenging it. This ruling has very significant implications. Does it mean that the rest of us who had never been charged under s 377A may also challenge s 377A if Tan's challenge doesn't succeed? Perhaps Mr Ravi could clarify.

#9: If the court rules that s377a is unconstitutional, then this law cannot be applied in court. It is 'struck down'. It will be as good as a bomb that had been deactivated permanently. Will the Parliament overrule the court's decision? I doubt so. Remember that the Parliament in assuring that s377a won't be enforced proactively had already agreed that they saw no value in it in protecting harm. In other words, if s377a didn't exist, they wouldn't take the effort to pass it into law. The main reasons for their refusal to repeal it are: 1) it could piss the conservative people off (in essence, cause loss of political points); 2) send the wrong impression that the government is 'promoting' gay sex.

If the court voids s377a, 1) no party's political points will be lost. And, if the Parliament overrules the court's ruling, then 2) it must substantiate that s377a still has a value in protecting harm, which, as I mentioned, was something the Parliament didn't think so. Look at cases in India, Tasmania & HK where anti-gay laws had been voided. Did the politicians go on to overrule the court's decision through the Parliament? No.

If the PAP, after the court voids s377a, decides to pass a Bill to overrule the court ruling, then how is it going to defend its present position of not proactively enforcing s377a? If s377a is useful in preventing harm, then why hasn't the PAP been enforcing it proactively? Moreover, the PAP should be glad that the court is 'doing the dirty job' of removing s377a for it. Many gay bankers, artists and other professionals had been offended by this law. Many gay Singaporeans had migrated. Many star performers in their fields (e.g. http://www.fridae.asia/newsfeatures/printable.php?articleid=1902 ) had been offended. Gay tourists may also be turned away (http://www.chinapost.com.tw/taiwan/2007/10/25/128102/Taiwan-gays.htm).

Well said, #11, but I didn't say anything about giving up the fight. Any attempt to challenge oppression is courageous and valiant. Especially so in Singapore. I definitely applaud M. Ravi for taking Tan's case as far as it can go within the legal system that we have.

Having said that, on a more practical level, it takes a prudent man to know when and how to fight. The current government of Singapore has been in power the last 50 or so years. So were the Liberal Democrats (LDP) in Japan. It took the opposition in Japan 50 years to erode the political supremacy (once thought unassailable) of the LDP. But, it eventually did happen.

Laws change much more easily with the right political masters in place. So, perhaps, we need to be a bit patient? After all, the next general elections which is expected to be in 2016 is not that far away. Just my two-cents' worth.

Yes, I agree #15 but who says the powers that be need to retain s377A? It's just a question of enacting another statutory provision which the ruling party has the power to do. The language of course will be rephrased so that it cannot be easily challenged in court again but the same venomous spirit and intent can be injected. Shit by any other name is, after all, still shit.

The ruling party has carte blanche power to enact anything it deems necessary in the greater "national interest". It has a two-thirds majority in Parliament which means even the Constitution can be (and has been) changed without much fuss or bother. So, what is unconstitutional can easily become constitutional before one can even bat one's false eye-lashes.

Gentlemen, this is the political reality in Singapore. Those of you who were part of the 60% who renewed the ruling party's mandate at the last general election, well, you don't have very much to complain about, do you? I was one of the 40% who batted for the other team.

Well done team Ravi, excellent job, the arguments put forward show clearly and unequivocally that Tan has standing and that this is no vexatious claim. The points made are very comprehensive, but there are even more points on the substantive issues that can be made when it comes to a full hearing.

Don't let the doom merchants and trolls get you down, there are very good reasons to be optimistic!

Heemale: Yes, the ruling party does have 2/3 majority in the Parliament, which makes it theoretically possible for it to enact any law or even amend the Constitution. But in this particular case, I doubt that it will go to that extent if the court voids s377a. In fact, there is every indication that the government agrees that s377a is unfair and that it won't intervene in how the court applies this law.

I refer to an article http://www.channelnewsasia.com/stories/singaporelocalnews/view/440540/1/.html where it's reported that the Law Minister is quoted as saying, "And the way the society is going, we don't think it's fair for us to prosecute people who say that they are homosexual." He also assured that "the courts have the power to decide how the law, Section 377, is applied."

In other words, if the court decides to not apply s377a, the government would probably not intervene. The ruling party presently has pledged not to enforce s377a proactively. The Law Minister also said it's fair for us to prosecute people who say that they are homosexual. Thus, if the court voids this law, how is the ruling party going to substantiate that there is a need to overrule the court's ruling? If such a need exists, it should have enforced s377a proactively today.

In fact, the ruling party should welcome a court ruling to void s377a, because it would then be able to let the latter do the 'dirty job'. If the ruling party takes the lead to remove s377a, it may lose votes. That's why it had been reluctant to repeal s377a even though it agrees that it's unfair, and that it shouldn't be proactively enforced. In fact, because s377a was still in the book, it had been grilled by various human rights bodies. It should be thankful if the court removes this thorn.

#19, well said and I applaud your thoroughness. We shall see then if developments will arise as you've postulated. This is just my guess but I'd venture to say that, as long as the old man still lives, the status quo will remain, i.e. s377A will stay on the books whether in its original form or a re-enacted one. I have as much respect for M. Ravi as you for taking the courts to task on this issue but my gut-feeling tells me nothing's really going to change as long as the patriach's still around. But then, what do I know.

First, correction on my above posting #19 which reads "The Law Minister also said it's fair for us to prosecute people who say that they are homosexual." It should read "The Law Minister also said it's UNfair for us to prosecute people who say that they are homosexual."

Heemale:I think the PM's father is actually the most tolerant leader towards gays in Singapore, at least from what I'd gathered. Refer to:
1) http://www.fridae.asia/newsfeatures/2011/01/28/10599.singapore-s-lee-kuan-yew-will-accept-if-grandchild-is-gay-discusses-homosexuality-in-new-book . I haven't heard of many political leaders of his stature anywhere around the world who have publicly said that they would accept a gay grandchild.

ALL THREE of the present Prime Minister and the two former ones are quite tolerant towards homosexuality. They are not obsessed with "the gap" as Thio Li Ann & group are (http://www.armourpublishing.com/index.php?page=shop.product_details&flypage=flypage.tpl&product_id=84&category_id=29&option=com_virtuemart&Itemid=63). Read ex-PM Goh's stance (http://news.bbc.co.uk/2/hi/americas/3044688.stm). The present PM's stance had been reiterated by the Law Minister. In essence, the trio are not likely to take the lead to overrule a court decision to void s377a. They are more obsessed with Singapore's GDP "gap" than with Thio Li Ann's "Mind the Gap".

But in order to ensure that the gay community continues to be taken seriously in Singapore, it is crucial that the community as a whole retains and builds significant ECONOMIC value, and can convey it to the society and the government.

plin85 is correct, its never a gift of equality or a sudden realisation that its injust that brings legal & political change - it is a fight and takes place in courts and newspapers and on TV and the streets in Pride marches.

But just as imprtantly it also takes place in the home, in thousands of homes as gay guys and gals COME OUT. And at work too. More of you gays have to do it and not just wait for others to make a stand for you.

Well, we are a law-abiding community, we try to talk reasons, but if talking gets us nowhere, we reserve the right as citizens to take the issues to court and resolve them through the proper channel. The courts of jurisdictions whose laws have roots in English law- such as Tasmania, India, Hong Kong- had struck down anti-gay laws. It's an axiom that anti-gay laws such as s377a violate the fundamental constitutional guarantee of equality for all citizens.

If Singapore's court follows the same core legal principles, I think it's only logical that it arrives at the same conclusion, which is that an anti-gay law like s377a is unconstitutional, and this can be the only compelling conclusion because the courts of at least three other jurisdictions based on the English common law system had ALL concluded so.

As the Prime Minister had admitted in the Parliament, the gay community had made significant contribution to the country. We pay our taxes, we vote and we work in all kinds of professions & businesses. There is no reason why the government should hate our presence in this country or think that we should be prosecuted because we say we are homosexual. If this law is voided in court, I don't think the government will overrule the court decision by having the Parliament amend the Constitution, unless it wants to earn the reputation as being the most homophobic country in the developed world.